Retaliation: New Developments in State and Federal Employment Law

Recent state and federal decisions will make it easier for employees to prove retaliation cases while making it harder for employers to define, and therefore avoid, retaliatory conduct. Attorneys must understand the changes to effectively advise their clients.

Recent state and federal decisions have broadened the universe of persons entitled to bring retaliation claims and reduced the degree of adversity sufficient to be the basis of a retaliatory event. That is, more employees are protected from retaliation in the workplace, and more inconsequential occurrences will give rise to claims. Attorneys advising parties on either side of such controversies should be aware of the legal developments.

Retaliation occurs when an employer takes an action against an employee because the employee objected to discrimination or a similar violation of law. Sometimes, protection from retaliation can attach in unexpected circumstances. For example, Carol Klatt and her daughter worked for the same chiropractic clinic, run by Dr. Thompson. Klatt's daughter filed a claim demanding unpaid vacation and overtime, and Klatt started thinking about filing a complaint seeking her own unpaid overtime. But before Klatt could file the complaint, the chiropractor, who was upset about receiving the daughter's complaint, fired Klatt. Even though Klatt never filed a complaint, the Wisconsin Labor and Industry Review Commission (LIRC) found that she established a prima facie case of workplace retaliation.1

According to agency statistics, retaliation claims are more frequently filed than any other type of employment discrimination claim. The Equal Employment Opportunity Commission's (EEOC's) 2011 charge statistics show that retaliation claims total 37.4 percent of claims filed.2 The Wisconsin Equal Rights Division (ERD) 2010 case statistics calculate retaliation at 29 percent of all claims filed.3 Part of the reason that retaliation claims are so plentiful is that they can result not only from alleged violations of federal law, such as Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act and Americans with Disabilities Act Amendments Act of 2008, but also from the Wisconsin Fair Employment Act (WFEA), which adds sexual orientation, marital status, and arrest and conviction record to the protected classifications. Moreover, antiretaliation provisions appear in a host of other statutes, including laws concerning family and medical leave, military members' employment and reemployment rights, personnel records, health-care worker protection, equal pay, wage claims, equal access to housing, and bankruptcy.

Employment attorneys need to know that significant developments in the law of retaliation have recently occurred.

Methods of Proof

Complainants can prove a retaliation claim using one of two methods: the direct method4 or the burden-shifting method.5

Direct Method of Proof

Under the direct method, the complainant must establish protected activity, an adverse employment action, and a causal connection between the two. Protected activity can take two very different forms: 1) opposition to discrimination in the workplace, and 2) participation in advancing a claim. Opposition can be explicit (making or filing a complaint) or implicit (letting the employer know that a complaint might be filed). That is, even if the complainant does not engage in overt action (like Klatt, for example), protection from retaliation may occur. In addition, the complaint need not be meritorious. It is sufficient that the complaining party have a good-faith belief in its worth.6 Finally, the complainant might be protected even if the complaint involved a different entity, such as a previous employer.7

According to a recent U.S. Supreme Court case, the complaint can be presented by the affected employee or by someone who is closely associated with that employee.8 In Thompson, an engaged couple worked at North American Stainless. The woman complained to the employer about sexual harassment. The man was then fired immediately, under circumstances clearly connected to his fiancé's complaint. The U.S. Supreme Court held that Title VII's ban on workplace retaliation against an employee who challenges discrimination also protects a coworker who is a relative or close associate of the targeted employee, if within a so-called "zone of influence." The question then becomes – who is within the zone of influence? If engaged couples are included, then certainly married couples and family members will also be covered. But what about looser affiliations, such as couples in serious but not committed relationships, close friends, or members of the same group, association, or team? Management-side attorneys must alert clients to recognize these types of associations and avoid retaliatory decision-making.

Participation is often overlooked as a source of protection from retaliation. The WFEA defines participation as "filing a charge, testifying, assisting or participating in an investigation, proceeding, hearing or lawsuit having to do with protected rights."9 Therefore, for example, all the witnesses who are questioned during a sexual harassment investigation are protected. So are any witnesses who provide statements to the EEOC or the ERD during an investigation. Again, the complainant is protected, even if the participation involved a different entity, such as a previous employer.

The courts have recently clarified what constitutes an adverse employment action. The question is what degree of "adversity" is required to establish a claim. This question has been answered on the federal level since 2006.10 In June 1997, Burlington Northern Railroad hired Sheila White as a track laborer. White's duties included removing and replacing track components, cutting brush, and clearing litter and cargo spillage from the right of way. In other words, her duties were physical and demanding. Soon after being hired, White was assigned to a vacant position on the forklift, a less taxing and therefore more desirable task.

In September 1997, White complained about insulting remarks made by her supervisor ("…women should not be working in the Maintenance Way dept."). An investigation followed, and the supervisor was disciplined. However, at the same time, White was reassigned to track laborer duties. She filed an EEOC charge, challenging the transfer as retaliation for her sex discrimination complaint. Not long after, White had a disagreement with a supervisor. She was suspended without pay and filed a grievance. The grievance was resolved in her favor, and White was reinstated, except for 37 days of lost pay.

The employer argued that White had not experienced an adverse employment action, as that term had previously been defined by certain federal courts. But, there was a split among the circuits as to this definition. To resolve the split, the U.S. Supreme Court took the case. Writing for the majority, Justice Steven Breyer held that an employment action, to qualify as "adverse," must be something that would "dissuade a reasonable worker from making or supporting a claim of discrimination."11 The Court differentiated retaliation cases from discrimination cases based on the degree of adversity required to give rise to a complaint. Relying on statutory language, the Court held that the adverse employment action in a discrimination case must be more material or serious than is required in a retaliation case. Even so, Justice Breyer said, regarding retaliation claims, "petty bureaucratic nastiness does not dissuade a reasonable person from seeking a substantial increase in income." Justice Breyer sought to clarify by saying, "context matters," meaning that an innocuous event might become material by virtue of the surrounding circumstances … or not.

LIRC followed suit in Kruschek v. Trane Co.12 James Kruschek brought a claim alleging that his supervisor retaliated by repeatedly staring at him during work hours. LIRC found that Kruschek stated a viable cause of action for retaliation and noted, "The purpose of the WFEA is to deter and to remedy discriminatory conduct of employers which infringes employees' civil rights. The legislature has directed that the WFEA is to be liberally construed for the accomplishment of this purpose." LIRC further stated, "the commission believes that to impose a requirement that discriminatory conduct be 'material' simply in an effort to separate 'significant' from 'trivial' claim harms, is inconsistent with the legislature's direction that the WFEA be liberally construed to deter and remedy discriminatory conduct which infringes employees' civil rights."

On that basis, LIRC ruled that in a claim of retaliation under the WFEA, "a complainant must show that a reasonable individual would have found the challenged action adverse, that is, it well might have dissuaded a reasonable individual from opposing any discriminatory practice under the Act or from making a complaint, testifying or assisting in any proceeding under the Act, and that context matters."13 This articulation of state law brings the state adversity standard in line with the federal standard.

The effect of these decisions is that employees can successfully bring retaliation claims for employment actions that would have been categorized as inconsequential a few years ago. The employee need only establish that the action was enough to dissuade him or her from bringing a complaint. So, for employees, retaliation cases now are easier to prove; for employers, retaliatory conduct is harder to define and, therefore, to avoid.

The third element of a direct evidence case, causal connection, is most often established by timing. The occurrence of a retaliatory event shortly after opposition or participation can create an inference of a causal connection. But the passage of time, even as little as four months, may break the chain of causation.14 A similar conclusion has been reached on the state level.15 Accordingly, complaining employees should not depend on timing alone to establish retaliatory motive, and employers should avoid engaging in negative employment actions for a time following the filing of a workplace discrimination complaint.

Indirect Method of Proof

The indirect method of proof requires establishing the elements of a prima facie case: 1) opposition or participation, as defined above; 2) adverse action, as defined above; 3) satisfactory job performance; and 4) existence of a similarly situated nonprotected employee who was treated more favorably.

The last two elements generate the most controversy in litigation. As to satisfactory job performance, what is the proper measure? The 7th Circuit Court of Appeals has said, "For a valid discrimination and retaliation claim under the ADA, an employee must show that he was meeting his employer's legitimate employment expectations, and that he was performing his job satisfactorily."16 Another question is – satisfactory at what time? After all, employment is not static; it is dynamic, always changing. Job responsibilities, reporting relationships, external pressures, and internal politics rarely stay the same. Successful employees need to adapt to new circumstances regularly. Therefore, the prima facie analysis focuses on the time when the termination decision was made, not some undefined previous moment. The 7th Circuit said, "[w]hat matters is whether [the plaintiff] was meeting his employer's expectations at the time of his discharge."17

The similarly situated employee element is demonstrated by identifying an employee who did not oppose or participate in discrimination but was treated better than the complainant. The individual who is compared must be "directly comparable to [the complainant] in all material respects."18 This element is easier to satisfy than the Title VII standard (that is, proof of a similarly situated nonprotected employee who is treated more favorably).

If a complainant establishes a prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for the adverse action. To be successful, the employer's explanation must be fact specific, supported, and well documented. Merely saying the employee was a poor performer or citing minor incidents of misconduct will not carry the day for the employer.19

Anna M. Pepelnjak, Marquette 1978, is a partner in the Milwaukee office of Weiss Berzowski Brady LLP, in the litigation practice group, where her practice includes employment law, civil rights, labor arbitration, general litigation, and appellate practice. She is a member of the State Bar of Wisconsin, Milwaukee Bar Association, Defense Research Institute, and Civil Trial Counsel of Wisconsin, and currently sits on the State Bar Labor and Employment Law Section Board. She is a contributing author to R. George Burnett et. al., Wisconsin Trial Practice (orig. pub. 1999).

After the employer describes the reason for the action, the employee can still prevail by demonstrating pretext. "Pretext means a dishonest explanation, a lie rather than an oddity or an error."20 In the pretext analysis, the 7th Circuit recently said, "The question is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reasons it has offered to explain the discharge."21 It is irrelevant that an employer may be wrong about the employee's performance or that the employer may be too hard on the employee. Rather, the question is whether the employer's reason for the adverse employment action was a falsehood.22 The court will not substitute its judgment for the employer's. The court is "not a super-personnel board charged with evaluating the general quality of employment decisions."23

On the state level, LIRC has stated, "A plaintiff may demonstrate his (or her) employer's reason is pretextual, i.e., that it is 'deceit to cover one's own tracks' by showing 'the reason (1) had no basis in fact; (2) did not actually motivate [the adverse employment action]; or (3) was insufficient to motivate [the adverse employment action].'"24 Moreover, an honest belief in the proffered reason satisfies the employer's burden. The question of whether an employer's asserted nondiscriminatory reason is objectively correct can be considered irrelevant if it appears that the employer genuinely believed it to be true.25 The trier of fact need only determine that the employer in good faith believed in those reasons, and that the asserted reasons for the action were not a mere pretext for discrimination.26

Conclusion

The decisions discussed here have made retaliation, already a frequently alleged employment law claim, available in even more circumstances. Some cases enlarged the sphere of employees who are entitled to bring retaliation claims and others reduced the degree of adversity sufficient to establish the retaliatory action. Because of these developments in the law, an employee's retaliation claim may be stronger than his or her original discrimination claim. All employment attorneys should understand these changes and advise clients with them in mind.

6 It is not necessary that the complainant have been objectively correct about her belief that an action opposed was prohibited discrimination, but it is necessary that the employee have had a good-faith belief that the action she opposed was prohibited discrimination. Osell v. Schedulesoft Corp., ERD Case No. 199800073 (LIRC, Oct. 27, 2000).

15Nelson v. Westby Coop. Creamery, ERD Case No. 200400105 (LIRC Apr. 11, 2008) ("although proximity in time may create an inference of a causal connection, it does not establish such a connection") (citing Kannenberg v. LIRC, 213 Wis. 2d 373, 396, 571 N.W.2d 165 (1997)). See alsoGephart v. DOC, ERD Case Nos. CR200404656, CR200501467 (LIRC Nov. 18, 2009) (holding that because more than six months had elapsed between time Gephart filed her complaint and time she was issued a written reprimand, causal connection was broken.)